Kusuma (Migration)

[2022] AATA 1680

Kusuma (Migration) [2022] AATA 1680 (21 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sharada Kusuma
Mr Trivikrama Rao Mothukuri
Master Nihal Sai Mothukuri

REPRESENTATIVE:  Mr Govind Swamy Pillay (MARN: 0743677)

CASE NUMBER:  1901598

HOME AFFAIRS REFERENCE(S):          BCC2017/1600038

MEMBER:Mary Sheargold

DATE:21 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 21 March 2022 at 4:34pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – cook – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitations to comment or attendance at hearing – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233(3), 187.311

CASES
Hasran v MIAC [2010] FCAFC 40
Singh v MIBP [2017] FCAFC 105

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 4 May 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook, ANZSCO 351411.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination application made by Audicue Pty Ltd for the position of Cook was not approved.

6. The applicants were represented in relation to the review.

7. On 2 February 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of Cook made by Audicue Pty Ltd was refused by a delegate of the Minister of Home Affairs, and that the nominator had applied to the Tribunal for review of that decision, but the Tribunal had recently affirmed the delegate’s decision.  The letter outlined that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

8. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 16 February 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and prepare arguments.

9. The review applicants did not provide the comments within the prescribed period and no extension was sought nor was one granted.  In these circumstances, s.359C applies, and pursuant to s.360(3) of the Act, the review applicants are not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. On 18 February 2022, the Tribunal wrote to the review applicants noting that it had not received any comments or response to its invitation dated 2 February 2022, and advised the review applicants that a telephone hearing listed for 2 March 2022, to which they had been separately invited, had been cancelled due to the effect of ss.360(3) and 363A of the Act.

11. For completeness, the Tribunal notes that the review applicants also failed to respond to the invitation to attend the hearing.

    Non-disclosure certificate issued pursuant to s.376 of the Act

12. On 24 February 2022, the Tribunal wrote to the applicants advising that the Department had placed a non-disclosure certificate over reference number BCC2017/1600038 of its file, issued pursuant to s.376 of the Act.  The certificate stated that disclosure of the material contained in that reference number would be contrary to the public interest because it may disclose or enable a person to ascertain the existence or identity of a confidential source of information.  The Tribunal’s letter invited the applicants to comment on the certificate’s validity and whether or not the Tribunal should exercise its discretion to disclose the material to the applicant.  A response was due by 3 March 2022.

13. On 3 March 2022, the applicant’s representative contacted the Tribunal requesting an extension of time to provide the comments and an extension was granted to 17 March 2022.  However, as at the date of this decision, no comments have been received.

14. The Tribunal notes that the information sought to be protected is not relevant to the issues in dispute before the Tribunal.  Despite requesting additional time to provide written comments, the applicants did not provide any written comments on the certificate’s validity or whether they wished the Tribunal to exercise its discretion to disclose the material to them.  The Tribunal finds the certificate to be valid, but does not exercise its discretion to disclose the material to the applicant.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

17. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

18. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

19. The nominator’s nomination application was refused by the Department, and the Tribunal affirmed that decision. The review applicants failed to provide any response to, or comments on, this information. As the nomination application for the position to which the first named applicant’s Subclass 187 visa relates has not been approved, it follows that the first named applicant does not meet the criteria in cl.187.233(3) of Schedule 2 to the Regulations.

20. In particular, in reaching this finding, the Tribunal has considered the comments made by the Full Court of the Federal Court of Australia in Singh v MIBP [2017] FCAFC 105 where Mortimer J (Bromberg and Jagot JJ agreeing) stated that:

    The words in cl.187.233 ‘position nominated in an application for approval that seeks to meet the requirements of’ reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application.  The ‘position’ referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances.  The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1).  It is to that act that the via applicant’s declaration in the visa application is directed…An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind.  The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).[1]

    [1] Singh v MIBP [2017] FCAFC 105 at [88]-[90].

21. In this matter, the Tribunal notes that because there is no approved nomination for the first named applicant’s visa application, she cannot overcome her current inability to meet cl.187.233(3) in relation to her application.  The nomination by Audicare Pty Ltd was specifically linked to her visa application, and that nomination was not, and now cannot be, approved.

22. Therefore, cl 187.233(3) is not met.

23. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

24. Pursuant to cl.187.311, the Tribunal must also affirm the decisions to refuse to grant Subclass 187 visas to the secondary applicants as they are not the member of a family unit of a person who holds a Subclass 187 visa, and there is no evidence that they meet the primary criteria in their own right.

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Mary Sheargold
    Member

    
    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.